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Tag Archive: disputes

  1. Neighbourhood Disputes – Trees

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    It is said that a good fence makes for a good neighbour however, unfortunately, sometimes it is actually that fence or the trees along it which can send the relationship very sour. In 2011, Queensland introduced new laws to, better assist in heading off these types of disputes, below are some of the more frequently asked questions and their answers:

    • What trees on a property are potentially affected? An offending tree does not necessarily need to be on or even near a boundary line. Any tree which has the potential to cause serious injury to a person, damage to property and/or is substantially and unreasonably interfering with the flow of sunlight or the view from a property is caught by the new law. An offending tree is typically in the next door neighbour’s property but can also be on the opposite side of the street. It cannot however be more than 1 neighbour over. Trees on any adjoining Government land or being grown for commercial use on a property are all exempt.
    • Are there any special rules were the complaint is about impeding sunlight or view? Yes, lost sunlight is only actionable where the offending tree is more than 2.5 metres in height and can be shown to be substantially and unreasonably shading a window or a roof to a dwelling. There is no complaint open for excessive shade to a pool area or a yard. If the issue is an alleged loss of view, then again the offending tree(s) must be more than 2.5 metres in height and the neighbour must show that the view existed from their dwelling at the time when the neighbour personally took possession of their property.
    • Who may complain and who is liable? Both a registered land owner and/or any tenant legally occupying an affected property have rights of complaint/action over a neighbouring tree(s). Responsibility however to manage trees on the property so as to not offend the laws rests only with the registered owner. The responsibility does not extend to a person who occupies the property as a tenant.
    • What can be done about an offending tree? The tree keeper can be required to destroy and remove the tree or prune the tree as necessary to remove the threat of injury to a person, damage to property or interference with sunlight/view. If a tree is to be destroyed/removed, the type, location and/or height/maturity of any replacement tree can also be stipulated.
    • How can conflict over an alleged offending tree be resolved? Wherever possible effected neighbours are encouraged to negotiate and resolve disputes directly between themselves in a civil and orderly way. Where this is not possible, assistance from a mediator can be obtained and/or an Application can be made to the Queensland Civil Administrative Tribunal (“QCAT”) which is a simplified Court set up to deal directly with the public (no lawyers) and can where necceasry make Orders either compelling a tree keeper to prune or remove a tree or conversely a ruling that a suspect tree is legal.
    • What is the rule about tree branches which overhang a boundary line? The effected neighbour can require the cutting and removal of any overhanging branches but only if a branch is extending more than 50cm from the boundary line and equal to or less than 2.5 metres in height from the ground.
    • Who is required to do the tree pruning/removal work? When agreed, this can be done by the land owner themselves or a professional contractor. If not agreed, QCAT Orders typically will compel the landowner to either do the work or have it done by any person they choose to engage and failing this, the local council can be authorised to go onto the property to carry out the Order.
    • What are the rights and responsibilities for buyers/sellers of land affected by tree disputes? Under the new laws, a seller of any land affected by either an Application for an Order from QCAT or an Order that has already been made, must disclose the existence of that Application/Order on any contract for the sale of that land. Failure to do so, gives the buyer an absolute right to both terminate the contract and seek a refund of the deposit. If the buyer only becomes aware of the Application/Order after settlement, the seller (former owner) remains personally liable to comply with any Order which exists or is subsequently made on any Application and the new owner is left completely exempt. These obligations of disclosure do not however, extend to an Order which was made at some earlier time that has now become “obsolete”. Presently there are no clear guidelines on what type of Order can be considered obsolete but presumably an Order for the removal of a tree which has been fully carried out would fit the category. Any buyer for a property under a contract can and routinely will search QCAT to determine if there are any existing Orders or unresolved Applications in place.
    • Does the tree have say? The Act makes it clear that a living tree should not be removed or destroyed unless the issue relating to the tree cannot otherwise be satisfactorily resolved and other more broader considerations such as whether the tree has any historical, cultural or social or scientific value, the contribution the tree makes to the natural landscape and scenic value of the land or locality, any contribution it might make to public amenity, contribution to the amenity of the land on which is situated such as contributing or relating to privacy, the impact the tree has on soil stability, the water table or other natural features of the land, any risk associated with the tree in the event of cyclone or other extreme whether event, the likely impact on the tree of pruning it, including the impact on the tree of maintaining it to a particular height, width or shape, the type of tree including whether the species of tree is a pest or weed.
    • What about problem trees that predated the new laws? Although the Act only came into effect in 2011, a recent decision from QCAT (Mahoney v Corrin [2013] QCAT318 has now made it clear that this new legislation can be applied towards resolving disputes that relate to trees that had been planted and had been already causing problems before the new law came into effect. The decision is quite revolutionary and breaks with the normal tradition which says that laws should not be made retrospective so as to render an action that was previously legal to become illegal, yet with this decision, trees which were perfectly legally standing in properties before the 2011 Act was passed, can now potentially become illegal and required to be removed by virtue of this decision.

    Michael Zande is the Principal of Zande Law Solicitors, with 25 years experience in practice. Michael and his team have had extensive experience in conveyancing matters. Please feel free to review our firm and staff profiles at www.zandelaw.com.au

    The information in this article is merely a guide and is not a full explanation of the law. This firm cannot take responsibility for any action readers take based on this information. When making decisions that could affect your legal rights, please contact us for professional advice.

  2. More or Less – Land Area Disputes

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    The giant multinational Subway Restaurant chain was caught short recently when Perth teenager Matt Corby posted a photo to the company’s Australia’s Facebook page featuring a “footlong” sandwich with proof that it only measured 11 inches! The posting went viral with hundreds of thousands of views world-wide and even the filing of class action law suits against the company in some states in the US. One claimant alleged that he had eaten a foot long every day for most of his life and was now intent on recouping financial compensation for his daily missing inch! Subway Australia’s response was the “footlong” name was simply to identify it descriptively and was not intended to guarantee its length and with that – at least for the moment in Australia, the storm of angry customers has been quelled.

    When it comes to the purchase of Land, the physical dimensions and overall area of any property is hardly as trifling a concern as an undersized sandwich. Land areas are required to be recorded in contracts and for newly subdivided blocks being sold as part of a property development usually, a full plan showing all of the dimensions of the block is also required. Generally, these details will come from what is already contained in the Land Titles Office however such details may not precisely coincide with the actual land. Depending upon the terms of the actual contract signed up between the parties, errors in these areas can give rises to claims for compensation and even termination of a contract.

    Generally, even slight discrepancies can be actionable when considered significant. For instance, in a case involving the sale of a building in George Street, Sydney, the contract had described it’s frontage as 26ft 2in however it was actually 25ft 9in – a difference of 5 inches.  The Court held that given the property’s locality and value, this did constitute an error entitling the purchaser to claim and recover compensation from the vendor.

    Under the standard REIQ contract used in Queensland, the area of land is required to be stipulated with a specific measurement but this is proceeded by the words “more or less” thus signifying that the measurement is only intended to be an approximation. This does not prevent a purchaser bringing a claim in response to a discrepancy but the question obviously begs – how far does the measurement have to be out before a discrepancy becomes actionable? As a guide, there have been a number of past cases where the land areas fell short by around 10% and in each of those cases, the buyers were successful in claiming compensation even though their contracts contained a “more or less” type statement. All of the cases however confirm that the real test is to determine whether the buyer actually got what he bargained for. This is a question for a Judge of fact and degree and if the purchaser can prove that the discrepancy is of real material significance, for example – the error making it impossible to subdivide, develop or use the land in a particular way, the purchaser may again have a strong prospect of success.  Should the purchaser be successful in their claim and the land has exceeded the latitude allowed by the words of approximation, the purchaser can recover for the entire discrepancy, he or she does not have to discount the discrepancy to allow for the maximum of the “give or take” measurement contained in the approximation.

    It is however important to note that under a combination of the usual terms for lands sales contracts and the general law, a buyer’s rights of complaint over undersized property dimensions are usually lost once the contract settles or completes. This is when the money is handed over in exchange for the transfer. It is therefore vitally important that these rights are preserved by the buyer expressly agreeing with the seller that rights of compensation are to be reserved even though settlement is being effected.

    With modern surveying techniques enabling measurements to be taken down to the millimetre and considering the ever increasing costs of land, it is any wonder that property owners and buyers are very keen to make sure they get every square centimetre of what they paid for.

    Developers Land Sales Contracts

     Where multiple buyers are purchasing subdivided “off the plan” blocks of virgin land with all of the houses, fences and other improvements still to be built, the scope for error and arguments is obviously greater and reflective of this, land developers usually modify the standard REIQ Contract to give specific prescription to the issue. For example, many local developer’s Contracts state that the buyer “cannot take objection” to an error in dimensions where the variation is 2% or less of overall land area or 1% of lineal dimension. With a clause of this type, the purchaser quite simply has no rights of complaint where the variations fall under the threshold. Where the error falls above the threshold dimensions it is usually (depending upon the actual wording of the Contract involved) still possible for the seller/developer to try to argue non liability as the  “more or less” words of approximation  typically still appear beside the actual dimensions for the property’s area on the front page of the Contract. Most developers however, usually accept that the stipulation of their own code as to what might be a non-complainable error means by exclusion that they must accept and honour rectification for any error that falls above that stipulation.

    Usual Rights of Compensation/Rectification

     Once an error in the property area and/or lineal boundaries has been detected, rectification of the issue usually falls into one of three options and sometimes a combination:

    • A calculation of the total land area lost is made and financial compensation at the same dollar value as the property’s original purchase price worked out on a dollar value per square metre basis is paid.
    • The property is resurveyed so as to achieve dimensions which are in fit with the overall area and land dimensions described in the Contract.
    • Structures such as boundary fencing, garden sheds, garages or other improvements on the land are demolished and relocated so as to fit within the area of the true boundary positions.

    With all of these initiatives however, there is also usually substantial legal costs, surveying fees and sometimes also Council fees to be paid and of course all of these costs must also be picked up by the offending party to the Contract.

    Other Forms of Actionable Misrepresentations

    Although misdescriptions of the physical dimensions of a property is relatively easy to quantify in determining whether a buyer did or did not get substantially what they bargained for, this is not the only area where a misdescription of a property’s features can potentially become actionable. In recent times, there have been cases in Queensland where buyers for property where able to escape their contracts and recover their full deposits due to misrepresentations about the property’s features as follows:

    • A penthouse unit said to have “unimpeded views and privacy” where the same Developer was building a twin tower to the same height next door.
    • A property described as “practically on the main road”, “fantastic views like Switzerland, permanent creek running through the property” where the contract was signed sight-unseen and none of the described features existed.
    • Units being sold off-the-plan as “apartments in a residential precinct” where the complex was to be run by a commercial resort manager intent on putting other units out for casual holiday letting.

    Real Estate Agents

    Because statements made by a Real Estate Agent usually bind the seller, Real Estate Agents have a contractual duty of care not to make negligent or reckless statements that might draw their seller/client(s) into breach of contract. Further, the Competition and Consumer Act 2010 (Cth) also imposes a duty on Agents, not to mislead or engage in deceptive or unconscionable conduct in procurement of sales and so this responsibility extends out the buyer as well. The consequences for Real Estate Agents who breach the duty to their clients and/or mislead or engage in deceptive or unconscionable conduct can be:

    a)         Liability for all of the seller’s reasonable out-of-pocket costs in dealing with the buyer’s dispute including monetary compensation and legal fees.

    b)         If the whole of the deal is lost and the seller resells for less, possibly that price difference.

    c)         Loss of their commission entitlement or at least a liability to have it offset against (a) and (b).

    d)         Fines imposed by the Australian Competition and Consumer Commission ranging up to $220,000 for individuals.

    e)         In extreme cases the possibility of an Agent’s “Real Estate License” being revoked.

    As a counterbalance to these things however, it can never be forgotten that the prevailing rule for the buying of real estate is “caveat emptor” which means “buyer beware”.  By this principle, a buyer must take responsibility for making their own enquiries as to the nature and suitability of the subject property, there is no “open slather” right of complaint about things well capable of detection from normal pre-contract enquiries.  As an extension of this, another principle originating from an old English law called the “Statue of Frauds” states that all relevant terms for a contract dealing in land must be recorded in writing within the contract, meaning that any extraneous or ancillary alleged terms or conditions stemming either from verbal communications or other ex-contract documents, are not generally considered to form part of the bargain.

    Like most things, the best advice that can ultimately be given in this area is that extreme care should always be exercised when writing down the description of a property, both in regards to its general features as well as its area and dimensions so that there does not become any scope for dispute in the first place.

    Michael Zande is the Principal of Zande Law Solicitors, with 25 years experience in practice.  Michael and his team have had extensive experience in conveyancing matters. We acknowledge the assistance of Matt Hannam of our office as co-author.  Please feel free to review our firm and staff profiles at www.zandelaw.com.au

    The information in this article is merely a guide and is not a full explanation of the law. This Firm cannot take responsibility for any action readers take based on this information. When making decisions that could affect your legal rights, please contact us for professional advice.